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(Malaysia) Bhd V. Dato' Sri Diraja Hj Adnan Hj Yaakob

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(Malaysia) Bhd V. Dato' Sri Diraja Hj Adnan Hj Yaakob Utusan Melayu (Malaysia) Bhd v. Dato’ Sri Diraja Hj Adnan Hj Yaakob 1 A UTUSAN MELAYU (MALAYSIA) BHD v. DATO’ SRI DIRAJA HJ ADNAN HJ YAAKOB COURT OF APPEAL, PUTRAJAYA ROHANA YUSUF JCA IDRUS HARUN JCA B MARY LIM J [CIVIL APPEAL NO: W-02(IM)(NCVC)-1396-08-2015] 1 JUNE 2016 TORT: Defamation – Libel – Article published in mainstream newspaper – C Contents of article revolved around Menteri Besar Pahang and perceived weaknesses of his administration – Whether article concerned Menteri Besar in his personal capacity or maligned him personally – Whether Menteri Besar had locus standi to file defamation suit in official capacity – Whether public officials should be open to criticism – Whether public officials could denounce criticisms by suing their D critics – Whether right of freedom of speech and expression would be stifled – Federal Constitution, art. 10(1)(a) CIVIL PROCEDURE: Action – Capacity to sue – Defamation action – Whether Menteri Besar had locus standi to initiate suit for defamation in official capacity – Public interest considerations – Whether public officials should be open to E criticism – Whether public officials could denounce criticisms by suing their critics – Whether right of freedom of speech and expression would be stifled – Federal Constitution, art. 10(1)(a) CIVIL PROCEDURE: Striking out – Action – Defamation action – Whether Menteri Besar had locus standi to initiate action for defamation in official capacity F – Public interest considerations – Whether public officials should be open to criticism – Whether public officials could denounce criticisms by suing their critics – Whether right of freedom of speech and expression would be stifled – Whether suit ought to be struck out – Rules of Court 2012, O. 18 r. 19(1)(b) & (d) G The respondent was the elected representative for the State Constituency of Pelangai and the Menteri Besar of the State of Pahang. The appellant was the printer and publisher of the mainstream newspaper known as ‘Mingguan Malaysia’. In one issue of the Mingguan Malaysia edition on 9 November 2014, the appellant caused to be published therein an article in its regular news analysis column dubbed ‘Bisik-Bisik Awang Selamat’ entitled ‘Hebat H Sangatkah Adnan’ (the article). The respondent, miffed by the publication of the article, brought an action against the appellant, claiming damages for libel. The contents of the article undoubtedly referred to the respondent which he alleged was made with malice and without an honest belief in the truth of the same, ergo was libellous of him. The respondent asserted that the I outrageous and unsubstantiated allegations meant and were understood to mean that he, inter alia, had failed miserably in carrying out his duties as the Menteri Besar of the State of Pahang and had continued to shirk his 2 Current Law Journal responsibilities to the people of the State. The appellant in turn applied for A an order to strike out the respondent’s action under the provisions of O. 18 r. 19(1)(b)(c) or (d) and/or O. 92 r. 4 of the Rules of Court 2012. Before the High Court, the appellant contended that the respondent was, in essence, suing in his official capacity as the Menteri Besar of the State of Pahang, driving home the point that the respondent lacked locus standi to initiate and B maintain this suit on the ground that being in such official capacity he might be subjected and must be open to public criticism. The High Court Judge, however, found that the respondent’s name was cited without his official position as the Menteri Besar of the State of Pahang, as such this fact showed clearly that the respondent was suing in his personal capacity. The trial judge C in addition emphasised that in the article, the respondent was referred to as ‘Adnan’ or ‘beliau’ at least 20 times which was sufficiently indicative that the article referred to the respondent personally. Hence, the trial judge held that the respondent had locus standi to institute and maintain this action. The appellant’s application was therefore dismissed. Hence, this appeal. It was the appellant’s submission that the respondent qua the Menteri Besar of the D State of Pahang had no locus standi to commence this defamation suit. The question of law brings to focus the fundamental question of the extent to which public officials of the respondent’s standing may sue for defamation to protect their reputation and good name under the law of defamation which lies amidst the potential conflict of the right to freedom of speech and E expression guaranteed under art. 10(1)(a) of the Federal Constitution with the protection of reputation of individuals maligned by the press or any calumniator. Held (allowing appeal) Per Idrus Harun JCA delivering the judgment of the court: F (1) By virtue of the respondent’s public office as the Menteri Besar and as the elected representative, the respondent should be open to public criticism and could never be defamed, hence, he ought to be precluded from suing for defamation (Derbyshire County Council v. Times Newspapers G Ltd). It is one of the fundamental principles that, in the exercise of the right to freedom of speech and expression within the ambit of the Federal Constitution and other relevant laws, the public should have the right to discuss their government and public officials conducting public affairs of the government without fear of being called to account in the court for their expressions of opinion. So far as the freedom of press was H concerned, it flowed from the right to freedom of speech and expression as guaranteed by art. 10 cl. 1(a) of the Federal Constitution the exercise of which shall at all times be protected and respected but subject to and no more than the permissible restrictions as may be imposed by federal law with clear and unequivocal language pursuant to cl. (2)(a) thereof. I (paras 12 & 19) Utusan Melayu (Malaysia) Bhd v. Dato’ Sri Diraja Hj Adnan Hj Yaakob 3 A (2) The article, when read as a whole undoubtedly concerned, and the contents thereof revolved around one person, namely, the respondent, being the Menteri Besar of the State of Pahang, not Dato’ Sri DiRaja Haji Adnan Haji Yaakob as a person or in his personal capacity. The article concerned the respondent as the Menteri Besar, the elected B representative and the political leader as well as the perceived weaknesses of his administration. The article certainly did not impute an improper, unlawful or immoral conduct nor malign the respondent personally which entitled the respondent to sue. (para 23) (3) The respondent adverted to the article as being highly defamatory of him C having regard to his position as a national leader especially that of a long standing Menteri Besar of the State of Pahang. The respondent had also pleaded innuendoes wherein he alleged that the article had defamed him in his office and that his reputation and good name as a national leader had been irretrievably tarnished by the article and as a politician had D been adversely affected. Thus, based on the respondent’s pleadings, it was manifest that the respondent had pleaded that the article was an attack against him in his capacity as the Menteri Besar of the State of Pahang. The facts gleaned from the respondent’s pleadings revealed conspicuous presence of evidence that he had filed the suit in his official E capacity. Therefore, the mere fact that the intitulement to the action only mentioned his name did not form a strong basis upon which this court ought to conclude that the respondent filed this action in his personal capacity. The respondent was in actuality suing in his official capacity as the Menteri Besar of the State of Pahang over matters which clearly relate to the manner in which he conducted the affairs of the State F and performed his official functions. (paras 24 & 25) (4) At all material times, the respondent held the highest public position as chief executive and part of the democratically elected State Government and was performing a public duty at large and conducting the affairs of the State. Government officials in the position of the respondent with his G eminent and exalted status should be accountable to the people for all official matters concerning the governance and affairs of the State and transparent in the discharge of his public duties. The administration of the State under the respondent’s stewardship must accept and should be open to all uninhibited public criticisms, comments or discussions as the H respondent was performing a public duty which affected the public at large. Public officials frequently receive plaudits for their achievements, but it would be entirely wrong and wholly inappropriate, whenever individual citizens or the press venture to criticise, for them to denounce criticisms by suing their critics with defamation or by subjecting them I to the threat of a defamation suit. Any such action for defamation or threat of defamation was certainly not the mark of a democratically 4 Current Law Journal elected administration in a system which practices good governance A within which the press too has a role of undeniable importance to play provided it performs its duty within the confines of the law. (paras 26 & 27) (5) The respondent by virtue of his public office, having sued in his official capacity, had no locus standi to do so. There would be a potential chilling B effect on free speech should the respondent be allowed to commence this defamation suit in his official capacity against critics of his official conduct. Persons holding public office should not be allowed to initiate a suit of this nature against any statement critical of them in their office as it ‘may prevent the publication of matters which it is desirable to C make public’.
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